Palo Alto Weekly

Palo Alto turns down volume at Lytton Plaza

City sets restrictions on amplified sound at popular University Avenue plaza

by Gennady Sheyner

Lytton Plaza, downtown Palo Alto's traditional hub for free speech and impromptu music, will see its volume drop on the weekdays after the City Council voted to restrict amplified sound at the popular gathering spot.

The City Council voted 7-1 on Monday night, with Vice Mayor Greg Scharff absent and Councilwoman Karen Holman dissenting, to set time restrictions on amplified sound at the plaza, which occupies the prominent corner of University Avenue and Emerson Street. Under the rule change, amplified sound will only be allowed from 6 to 10 p.m. on Mondays through Thursday, from 5 to 11 p.m. on Friday, between noon and 11 p.m. on Saturday and between noon and 10 p.m. on Sunday.

The council's decision was a slight adjustment to the proposal offered by staff and the Parks and Recreation Commission. That proposal would have allowed musicians to start using amplified sound at 5 p.m. between Monday and Thursday. Councilmen Sid Espinosa and Larry Klein both argued that the workday these days ends later than 5 p.m. and proposed moving the starting time to 6 p.m.

Amplified sound became an issue shortly after the 2009 renovation of Lytton Plaza, which included new paving, a new fountain, new tables and chairs and electric outlets. The idea was to use the outlets for city-sponsored events, like the short-lived Farmers Market that occurred once a week at the plaza between 2009 and 2010. But visitors had their own ideas. Some plugged in and played their music instruments. Others used the outlets for stereos, personal heaters and other items, said Daren Anderson, division manager for Open Space and Parks at the city's Community Services Department.

Anderson said the city has been fielding complaints from downtown businesses, who claimed the music during daytime is too loud, and downtown residents, who said musicians often play until late at night. John McNellis, a developer whose buildings include 180 University Ave., located across the street from the plaza, was among those calling for the city to clamp down on sound. His building includes the venture-capital firm Technology Crossover Ventures on the second floor and downtown newcomer West Elm, on the ground floor.

"The noise is highly disruptive to the conduct of everyday business, and the last thing we, as a city, should ever do is give a great tenant pause about either locating to or remaining in our downtown," McNellis wrote. "That is the situation now."

Palo Alto has been struggling with the issue for more than a year. Staff has held stakeholder meetings in hopes of reaching a compromise with downtown workers and musicians on possible sound limits. The Parks and Recreation Commission considered various proposals, including one that would have required permits for all amplified sound, but decided in August to support a less stringent rule change. Plugging in will remain free on a first-come, first-serve basis, but users will now have to purchase permits if they wish to reserve an outlet for a specific time slot.

The other change that the council made to the staff proposal is the permit fee. While staff and the commission proposed a $90 fee, the council directed staff to set a fee at such a level as to reach "full cost recovery" for the city, with the amount not exceeding $200.

The initial proposal to ban amplified sound at the popular plaza drew criticism from musicians, who use the plaza both on an ad hoc basis and for organized jam sessions on Friday evenings. But after months of meetings, the merchants, the musicians and the city reached the compromise that was reflected in the most recent proposal. Susan Webb, who organizes the Friday jam sessions, asked the council not to shift the starting hour for amplified sound from 5 p.m. to 6 p.m. but otherwise supported the new restrictions. These include having the city remotely shut off the power at the plaza outlet at 11 p.m.

"We need music. We need culture in town," Webb told the council, though she added that she supports turning down the music when it gets late enough.

"It helps me to get the power shut off at 11 p.m.," Webb said. "That means I don't have to rail at those pesky musicians who want to play until 3 a.m."

Russ Cohen, executive director of the Palo Alto Downtown Business and Professional Association, also praised the restrictions. Like Webb, he stressed the importance of having music at the plaza. But acoustic music could do the trick, he said.

"That's what we're talking about — the difference between amplified music and acoustic music during daylight hours," Cohen said. "What you have before you is a very reasonable program. It does not prevent musicians from coming to Lytton Plaza and playing, as long as it's not amplified."

The council generally agreed with Cohen.

"I think this is an appropriate compromise," Klein said. "I like the spirit in which this was conducted. I do think this will require a certain amount of self-policing by the music groups, and I don't think that's a problem."

Klein compared the first-come, first-serve process at the plaza to basketball courts: demand frequently exceeds supply, but teams have a way of sorting out who will play when. Espinosa supported Klein's proposal for full-cost recovery and agreed with the downtown businesses that amplified music should be turned down. He recalled visiting some downtown offices and said the music from the plaza made it feel like he was at a rock concert.

Karen Holman was the sole councilmember who felt the resolution didn't go far enough. She called for an outright ban on amplified sound at Lytton Plaza, though her proposal didn't win the support of any of her colleagues.

"I hear our community getting louder and louder," Holman said, adding that this becomes particularly apparent when she goes to another town.

"Sometimes, the difference is stunning to me," Holman said. "I'm a supporter of music and the arts and the free speech and all that. But I don't know if from my perspective all of that is dependent on amplification."

Posted by R Kurtz,
a resident of Crescent Park
on Nov 20, 2012 at 12:01 am

I'm glad they put some restrictions on the sound, but they should have gone a little further and took away any amplified sound. Don't get me wrong here folks, I play guitar and piano and love all music, but the one guy who plays electric blues out there always has that amplifier cranked up while on slide guitar. It's the same old songs over and over and not to mention he plays for tips (by the way, does he pay tax for that income?). In any event, let them play but take away the amps and percussion.

Posted by Pillows,
a resident of Another Palo Alto neighborhood
on Nov 20, 2012 at 3:27 pm

@Mark Weiss: What in the world are you talking about? Throw pillows?
Please explain how limitations on the amount of time allowed for amplified music has anything to do with the Bill of Rights. People can still speak or play unamplified music at other times, as I read the story.

Posted by All Men Brothers,
a resident of Greater Miranda
on Nov 20, 2012 at 7:27 pm

Carew-Reid v. Metropolitan Transportation Auth., 903 F2d 914 (2nd Cir. 1990);
Or I guess I could have said "reid carew" to be that much punnier...

but seriously, I have been watching this thing, writing on it and going to meetings for 15 months, and watching Lytton Plaza Grab overall for four years and it fits the pattern of leadership listening to anything and everything no matter how ridiculous from certain Big Money types -- like McNellis, above -- and completely ignoring just about everybody else, me included, and especially the people who don't look like them, don't act like them, don't donate to their campaigns nor shop at trendy mall-on-Main chain stores, who actually despite what is said in the article BENEFIT from there being a lively scene at Lytton -- would they rather be miles and miles from the noise of the city; the only thing in evidence is that certain people --dubbed "undesirables" and "sketchy people", their words, on record -- are being scapegoated by the power structure who have contrived this convoluted attempt to micro-manage the plaza, in effect, they are trying to privatize a public asset: what's next, they are going to sell the rights to broadcast thru those cute little muzak boxes, and keep the money? Will they put up a fence like Gramercy Park?

People are telling me that Palo Alto is putting itself out of bounds and just as likely is ripe for a lawsuit from these people whose rights we are de-prioritizing, that the 9th Circuit Court is very First Amendment friendly, and numerous cases side with those that say you should not ban the amplifiers as a way to control the plaza: the noise ordinance as written is doing perfectly fine. (there's also some nonsense from staff report that the noise ordinance is hard to enforce so that a new ordinance is needed -- actually the cops don't want to have to deal with this although a few are only so happy to do what the rich bosses tell them to do, though unofficially. At the stake holders meeting in January, my observation was that Sgt. Benitez didn't want to be there and could not leave fast enough, as in, why all this wasting of his time on a non-issue? The issue of whether Downtown PAD warps our democracy is worth looking further into; in other music as rights cases they were the instigators.

meanwhile, I suggested to PAD that they make the best of it and underwrite a better music program that draws shoppers to downtown and Lytton rather than putting so much negative energy and moral judo towards harassing the poor, the musicians and we regulah folkses...

Posted by Amps as speech?,
a resident of Barron Park
on Nov 20, 2012 at 7:34 pm

For example, I just ran into, here at Coupa, Zack, who plays electric bass in a band that performs at Lytton, when he is not by daylight a mild-mannered but rather hip software guy, at a venerable startup, downtown. Zack would not be able to play any more, without a permit, during business hours, at Lytton Plaza. The nature of his instrument --his talent, and assuming for the sake of argument he choses to play this, to a level of mastery and would not, as I suggested to him just now, merely switch to a guitar and unplug -- is electric and it plugs into an electric amp, and he performs with a band, and not solo. He can of course control the volume of his output, to stay within the noise ordinances, as measured in dBs, reasonably and does not, in most people's opinion constitute a raucous or ruckus merely by existing, but more importantly he fits in and augments and meters the beat, so to speak, of a group of like individuals, a band. Our ordinance misunderstands the nature of plugged in versus unplugged, electric vs. acoustic, rock versus folk, being a sideman versus a solo player, or what not and seeks to cram it all together into a (arguably) governable lump, for dubious purposes, I would argue. Zack's choice of instrument and its accompanying amplifier is part and parcel of his message per se, and not mere TMP time place or manner. See also: Dylan at Newport. Ergo: amplifier is speech, and our law in unconstitutional.
-mbw reprinted from "Plastic Alto" -- the link I provided four hours ago

Posted by Press play,
a resident of Adobe-Meadow
on Nov 20, 2012 at 7:57 pm

Is developer John McNellis seriously arguing that the succession of losing tenants at Emerson and University is due to Dave Hydie's version of "My Baby Done Left Me" being inferior to that of Big Bill Crudup or is it possible that the rent approaching $100,000 per month triple net is so outrageous that no business no matter how cute and cuddly the "handmade" silk throw pillows ($34, or $16 for just the insert) for sale could make it there, even if Dylan himself appeared one of these days, to busk, plugged in or not?

The First Amendment gives your tenant "pause"? I would press "eject", for my dollar.

Palo Alto has decibel limits for various hours. Maybe the city should start enforcing the code, including for homes near noisy neighbors. Also, disrupting someone's business isn't acceptable, whether is is a downtown office or a home business.

Posted by pillow talk,
a resident of Barron Park
on Nov 22, 2012 at 10:47 pm

I signed each of those posts so yes "transparent" and quite deliberate...
mbw (mark b. weiss)

I also texted six members of council and talked to the city attorney, in person.
I am looking for a constitutional law expert to read these cases and figure out if there is indeed something that Molly Stump is being paid to overlook and or that eight council members are missing something that I think I am seeing.

As I said, I have been tracking this pretty closely for more than a year.
One of the other stakeholders is happy with the outcome -- the rec commission did water down and even more odious first attempt at new ordinance --

Another way to frame the overall question:
the rights of how many regular citizens is government going to squash to help a small group of wealthy property owners optimize their profits? I disagree with McNellis statement that commercial tenants come before citizens, especially in First Amendment matters.

Maybe it is a fair compromise to draw the line at amplifiers during business hours but I am fairly staunch about rights of expression; I want to look more closely at the actual precedents and see if the rest of us 50,000 residents beg to differ with what 8 representatives say or think.
mbw

and you are a hypocrite Mr. Pillow to suggest there is something devious about me posting under various names -- I am actually mocking the practice.

Posted by Mark Weiss ,
a resident of Downtown North
on Nov 22, 2012 at 11:27 pm

The record is devoid of any explanation of why the alternative of enforcing the City's noise ordinance -- an alternative that is on the books, is designed to address the problem of excessive noise, and has been enforced against (A&O) in the past -- would not have achieved the City's objective as effectively as the amplification ban, while placing a substantially lesser burden on speech.
That's me, Weiss, quoting from Casey but I think it is equally true here: why didn't McNellis et al merely ask police to enforce existing noise ordinance but instead asked staff, stakeholders, commissioners and council to add on this layer of law that I claim is beyond the pale? How much more citizens' rights is leadership going to ask to squash to try to help the already-powerful special interests before enough of us catch on, speak out, and get the pendulum swinging back towards Democracy?
This is about the narrow-tailoring requirement in these cases.

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